Citation Nr: 0709477
Decision Date: 03/30/07 Archive Date: 04/16/07
DOCKET NO. 04-06 687 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in Waco,
Texas
THE ISSUES
1. Entitlement to service connection for migraine.
2. Entitlement to service connection for right
jaw/temporomandibular joint, jaw fracture (claimed as jaw
problems with the right side of the face).
3. Entitlement to a compensable evaluation for scar on the
left mastoid and chin area.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Suzie S. Gaston, Counsel
INTRODUCTION
The veteran served on active duty from August 1948 to July
1954.
This matter comes before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a June 2003 rating
decision by the Waco, Texas, Regional Office (RO), which
denied the veteran's claims of service connection for right
jaw/TMJ pain and jaw fracture, service connection for
migraine, and a compensable evaluation for left mastoid and
chin area scar.
In May 2006, the Board remanded the case to the RO for
further evidentiary development. Following the requested
development, which included obtaining a VA medical opinion, a
supplemental statement of the case (SSOC) was issued in
December 2006.
A motion to advance this case on the docket, due to the
veteran's age, was received by the Board in March 2007, and
was granted by the Board later that month. See 38 U.S.C.A.
§ 7101 (West 2002 & Supp. 2006); 38 C.F.R. § 20.900(c)
(2006).
FINDINGS OF FACT
1. The veteran does not have migraine attributable to
military service.
2. The veteran's currently diagnosed jaw disabilities to
include TMJ are not attributable to service.
3. The veteran's scar on the chin has been shown to be
asymptomatic, with none of the characteristic signs of
disfigurement.
CONCLUSIONS OF LAW
1. Migraine was not incurred in or aggravated during
service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002 &
Supp. 2006); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2006).
2. A right jaw disability, to include TMJ pain and jaw
fracture was not incurred in or aggravated by service. 38
U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.159, 3.303 (2006).
3. The criteria for a compensable rating for the scar left
mastoid and chin area scar have not been met. 38 U.S.C.A.
§§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38
C.F.R. §§ 3.159, 4.7, 4.118, Diagnostic Codes 7800-7805
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. VCAA.
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2006);
38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Proper VCAA notice must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; and (3) that the claimant is expected to provide;
and (4) must ask the claimant to provide any evidence in his
possession that pertains to the claim, in accordance with 38
C.F.R. § 3.159(b) (1). See Pelegrini v. Principi, 18 Vet.
App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir.
2006).
In the Mayfield case, the U.S. Court of Appeals for the
Federal Circuit addressed the meaning of prejudicial error
(38 U.S.C.A. § 7261(b)), what burden each party bears with
regard to the Court's taking due account of the rule of
prejudicial error, and the application of prejudicial error
in the context of the VCAA duty to notify (38 U.S.C.A.
§ 5103(a)). The Federal Circuit held, in effect, that the
Board must specify what documents satisfy the duty to provide
notice to a claimant, and that the Court of Appeals for
Veterans Claims must, if a case is appealed to the Court,
specifically review the Board's findings regarding such
notice. Considering the decisions in Pelegrini and Mayfield,
the Board finds that the requirements of the VCAA have been
satisfied in this matter, as discussed below.
In Pelegrini, the U.S. Court of Appeals for Veterans Claims
held, in part, that a VCAA notice, as required by 38 U.S.C.A.
§ 5103(a), must be provided to a claimant before the initial
unfavorable RO decision on a claim for VA benefits. In this
case, VA satisfied its duty by means of a letter dated in May
2003 from the agency of original jurisdiction (AOJ) to the
veteran that was issued prior to the June 2003 rating
decision regarding the claim of service connection for jaw
fracture and migraines. Another letter was issued in May
2006. With respect to the claim for a compensable evaluation
for scar on the left mastoid and chin area, the Board finds
that any defect with respect to the timing of the VCAA notice
requirement was harmless error. While the notice provided to
the veteran in May 2006 was not given prior to the first AOJ
adjudication of that claim, the notice as provided by the AOJ
prior to the transfer and recertification of the veteran's
case to the Board and notice complied with the requirements
of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Those
letters informed the veteran of what evidence was required to
substantiate the claim and of his and VA's respective duties
for obtaining evidence. The veteran was also asked to submit
evidence and/or information in his possession to the AOJ.
Accordingly, the requirements the Court set out in Pelegrini
have been satisfied.
The Board concludes that the notifications received by the
veteran adequately complied with the VCAA and subsequent
interpretive authority, and that he has not been prejudiced
in any way by the notice and assistance provided by the RO.
See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993);
VAOPGCPREC 16-92 (57 Fed. Reg. 49,747 (1992)). Likewise, it
appears that all obtainable evidence identified by the
veteran relative to his claims has been obtained and
associated with the claims file, and that neither he nor his
representative has identified any other pertinent evidence,
not already of record, which would need to be obtained for a
fair disposition of this appeal. Thus, for these reasons,
any failure in the timing or language of VCAA notice by the
RO constituted harmless error.
Accordingly, we find that VA has satisfied its duty to assist
the veteran in apprising him as to the evidence needed, and
in obtaining evidence pertaining to his claims, under both
former law and the VCAA. The Board, therefore, finds that no
useful purpose would be served in remanding this matter for
yet more development. Such a remand would result in
unnecessarily imposing additional burdens on VA, with no
additional benefit flowing to the veteran. The Court of
Appeals for Veterans Claims has held that such remands are to
be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en
banc), vacated on other grounds sub nom. Winters v. Gober,
219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430
(1994). See also Livesay v. Principi, 15 Vet. App. 165, 178
(2001) (en banc).
The Board recognizes that the VCAA notifications from the RO
pre-dated, and therefore did not specifically comport with,
the recent decision of the Court in Dingess v. Nicholson, 19
Vet. App. 473 (2006), which requires more extensive notice in
claims for compensation, e.g., as to potential downstream
issues such as disability rating and effective date.
However, given the ample communications regarding the
evidence necessary to establish service connection for
migraines, service connection for jaw fracture, and increased
rating for scar on the left mastoid and chin area, given that
there has been a Board remand, and considering that the
veteran is represented by a highly qualified veterans service
organization, we find that any notice deficiencies are moot.
See Conway v. Principi, 353 F.3d 1369, 1374 (2004), holding
that the Court of Appeals for Veterans Claims must "take due
account of the rule of prejudicial error."
II. Factual Background.
The veteran served on active duty from August 1948 to July
1954. The service medical records indicate that a stack of
lumber fell on the veteran while working at engineer depot in
June 1949; he was brought to the hospital in a comatose
condition. He received supportive therapy and was conscious
by the following morning. Examination revealed abrasions
over the chest and lacerations on the chin and occiput. The
final diagnoses were crushing chest and cerebral concussion.
The service medical records do not reflect any complaints of
or treatment for any jaw problems, including fracture of the
temporomandibular joint, or migraine headaches.
The veteran's claim for service connection for migraine
headaches and jaw problems, as well as for an increased
rating for the scar on his chin (VA Form21-4138) was received
in March 2003. Submitted in support of the veteran's claims
were VA progress notes, dated from January 2002 to April
2003. These records show that the veteran was seen on
several occasions for complaints of pain in the right jaw; he
was diagnosed with TMJ pain. During a clinical visit in
December 2002, the veteran indicated that he had an accident
in service as a result of which he sustained a broken jaw; he
stated that he did not get any treatment, but he recently,
about one year ago, began having TMJ pain. He was diagnosed
with TMJ pain. During that visit, the veteran also
complained of pain on the right side of the head that travels
down the jaw to the neck area. It was recommended that the
veteran be scheduled for a CT scan of the head to evaluate
for headaches and his history of head injury. The veteran
was seen in February 2003, at which time he stated that he
had pain in he head and jaw; he described the pain as being
an 8 on a scale from 0 to 10. During a follow up evaluation
in April 2003, the veteran stated that he had pain in the
right jaw and headache pain.
The veteran was afforded a VA compensation examination in May
2003 for evaluation of his scar. The veteran reported having
a scar due to an injury on the right side of the cheek
periarticular area. He denied having had any injury to the
left side. He reported having the small scar on the chin,
which is asymptomatic and healed, which is about 2.5cm-3cm,
transverse, healed, and superficial without any sequelae.
The veteran reported that the scar on the right cheek had
healed; he noted that he had pain in the area of the scar,
although it was not easily visible or palpable at this time.
It was noted that the scar was not visible. The veteran did
complain of pain in the right periarticular cheek area. The
veteran was unable to exactly show presence of scar. The
examiner indicated that he was unable to see any scar or feel
any scar. Skin creased on the face seemed to make the
evaluation for presence of the scar difficult. No keloid or
edema was seen. Details of the scar could not be examined
since it was not easily visible. No gross asymmetry or
distortion was seen. The pertinent diagnoses were remote
history of injury to the right periarticular area, cheek and
chin; and, scar on the chin was healed and asymptomatic,
unable to identify scar on the right periarticular area.
On the occasion of another VA examination in April 2004, it
was noted that the scar on the veteran's right chin measured
3 cm x .3 cm, was superficial, transverse, with slight
depression, and with dark pigmentation. There was no
breakdown, no adhesion, constriction, and nontender. It was
also noted that the scar was not disfiguring; it was not
visible without the veteran tilting head upward. The scar
was not painful and not adherent. The skin was smooth and
regular. There was no ulceration or breakdown of the scar.
There was a slight depression. The scar was described as
superficial. There was no inflammation, edema, or keloid
formation of the scar. The scar was described as
hyperpigmented. The diagnosis was superficial scars. It was
noted that the veteran also claimed temporomandibular joint
syndrome as secondary to the injury sustained while in
service. He stated that the TMJ began about 1 1/2 years ago,
and has improved with nonsteroidals treatment. He stated
that it was not a problem until the last 1 1/2 to 2 years. On
examination, the jaw opened satisfactorily without pain, and
no crepitus or tenderness was noted in either TMJ. The
examiner noted that the amount of trauma sustained to the
head and neck would be adequate to account for any TMJ that
was present, but it did not appear that this had been an
ongoing chronic condition through the years.
In June 2006, the veteran's claims folder was transferred to
a VA examiner for an opinion regarding the veteran's claims
of migraine headaches and TMJ pain. The examiner indicated
that he conducted an extensive review of the veteran's
folder. He noted that current treatment reports since 2002
show onset of TMJ syndrome treated with nonsteroidals, now
with improvement. He also noted that the records show
complaints of headaches which have not been labeled as
migraines; those also have improved with treatment. The
examiner concluded that there was no link established. He
stated that there was no description of any complaints or
diagnosis or treatment that would suggest a continuation of
headache or TMJ conditions during that interval up until
2002. The examiner further noted that treatment notes from
2002 and beyond describe the symptoms as being of recent
onset and not chronic; his history confirmed hat there was n
absence of TMJ and headache symptoms until 2002. The
examiner concluded that it is less likely than not that
neither his headaches nor his right TMJ syndrome are related
to the singular remote injury to the head which he incurred
during service in 1949, with the rationale that there is no
demonstrated nexus between that incident and the onset of
these two conditions much later in life.
III. Legal Analysis-Service Connection.
Pertinent regulations provide that service connection will be
granted if it is shown that a veteran has a disability
resulting from an injury or disease contracted in the line of
duty, or for aggravation of a preexisting injury or disease.
38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R.
§ 3.303 (2006). Generally, service connection requires (1)
medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury. Pond v.
West, 12 Vet. App. 341, 346 (1999).
The Court has held that where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. Grottveit v. Brown, 5 Vet.
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492 (1992). The Federal Circuit has also recognized the
Board's "authority to discount the weight and probity of
evidence in light of its own inherent characteristics and its
relationship to other items of evidence." Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997).
The Court has held that the Board must determine how much
weight is to be attached to each medical opinion of record.
See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater
weight may be placed on one medical professional's opinion
over another, depending on factors such as reasoning employed
by the medical professionals and whether or not, and the
extent to which, they reviewed prior clinical records and
other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994).
Furthermore, under the provisions of 38 C.F.R. § 3.102, when,
after careful consideration of all procurable and assembled
data, a reasonable doubt arises regarding service origin,
such doubt will be resolved in the favor of the claimant.
Reasonable doubt is doubt that exists because of an
approximate balance of positive and negative evidence, which
does not satisfactorily prove or disprove the claim. The
question is whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a fair preponderance of the evidence is
against the claim, in which the claim must be denied. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54
(1990).
A. Migraine.
The veteran's claim for migraine fails to meet the
requirements of evidence of a service-connected disease or
injury and evidence of a present disability which is
attributable to such disease or injury. The competent
evidence of record does not establish a current diagnosis of
migraine. The service medical records do not contain any
diagnosis of migraine or other headache disorder. After
service, there is no competent clinical diagnosis of any
headache disorder.
The veteran has complained of headaches that he says have
occurred since service. In this regard, the Board notes that
in order to qualify for entitlement to compensation, the
veteran must prove existence of a disability and one that has
resulted from a disease or injury that occurred in the line
of duty. Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001.
The claims file does not contain competent evidence to the
effect that the veteran currently suffer from migraine or
that any complained-of headaches are related to disease or
injury inservice. With the absence of a current diagnosis of
migraine, the evidence cannot establish a causal connection
between the claimed headaches and service. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, the Board
concludes that the veteran's claim for service connection for
migraine should be denied. Because the preponderance of the
evidence is against the veteran's claim for service
connection for migraine headaches, the benefit-of-the-doubt
doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361,
1365 (Fed. Cir.).
B. Right jaw/TMJ pain and jaw fracture.
The veteran has TMJ syndrome. He does not satisfy the other
two requirements for prevailing on a claim for service
connection. In this regard, the service medical records are
negative for any findings of an injury to the right jaw, a
jaw fracture or TMJ syndrome. In fact, the veteran stated
that he only began experiencing problems with the right jaw
in 2002. In addition, following the VA examination in April
2004, a VA examiner noted that the amount of trauma sustained
to the head and neck would be adequate to account for any TMJ
that was present, but it did not appear that this had been an
ongoing chronic condition through the years.
The medical evidence also does not suggest that the current
jaw disorder, diagnosed as right TMJ syndrome, first shown
many years after service, is related to any incident of
service. Significantly, following a thorough review of the
veteran's claims folder in June 2006, a VA examiner concluded
that it is less likely than not that the veteran's right TMJ
syndrome is related to the singular remote injury in service
in 1949.
While the veteran may sincerely believe that his TMJ syndrome
is directly related to service, laypersons are not considered
competent to offer medical opinions, and testimony to that
effect does not provide a basis upon which to establish
service connection. See Routen v. Brown, 10 Vet. App. 183,
186 (1997) ("a layperson is generally not capable of opinion
on matter requiring medical knowledge"), aff'd sub nom.
Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied,
119 S. Ct. 404 (1998); Espiritu v. Derwinski, 2 Vet. App. 492
(1992). The veteran's assertions regarding his TMJ syndrome
are not competent. The probative evidence tends to establish
that the TMJ syndrome is unrelated to service.
The weight of the credible evidence establishes that the
veteran's current jaw disorder began many years after service
and was not caused by any incident of service. The condition
was not incurred in or aggravated by service. As the
preponderance of the evidence is against the claim for
service connection for right jaw/TMJ and jaw fracture, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
IV. Legal Analysis-Increased rating.
The Board notes that disability evaluations are determined by
the application of a schedule of ratings, which is in turn
based on the average impairment of earning capacity caused by
a given disability. 38 U.S.C.A. § 1155 (West 2002 & Supp.
2006); 38 C.F.R. § 4.1 (2006). Each service-connected
disability is rated on the basis of specific criteria
identified by diagnostic codes. 38 C.F.R. § 4.27. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7. When, after careful
consideration of all the evidence of record, a reasonable
doubt arises regarding the degree of disability, such doubt
shall be resolved in favor of the claimant. 38 C.F.R. § 4.3.
When rating the veteran's service-connected disabilities, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, the present
level of disability is of primary concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation, the
regulations do not give past medical reports precedence over
current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7
Vet. App. 55 (1994).
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. 38 U.S.C.A.
§ 7104(a). When there is an approximate balance of evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant. 38
U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that
"a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert
at 54.
The veteran's claim for a compensable rating was filed in
March 2003, after the most recent revision of the rating
criteria relating to skin disabilities.
A 10 percent rating for disfigurement of the head, face or
neck is warranted for one characteristic of disfigurement.
38 C.F.R. § 4.118, Diagnostic Code 7800. The eight
characteristics of disfigurement are: skin indurated and
inflexible in an area exceeding six square inches (39 sq.
cm.); underlying soft tissue missing in an area exceeding six
square inches (39 sq. cm.); skin texture abnormal (irregular,
atrophic, shiny, scaly, etc.) in an area exceeding six square
inches (39 sq. cm.); skin hypo- or hyperpigmented in an area
exceeding six square inches (39 sq. cm.); scar adherent to
the underlying tissue; surface contour of scar elevated or
depressed on palpation; scar at least one-quarter inch (0.6
cm.) wide at widest part; or scar five or more inches (13 or
more cm.) in length. 38 C.F.R. § 4.118, Diagnostic Code
7800, Note (1).
Upon review of the evidentiary record, the Board finds that
none of the evidence indicates that the veteran has any
requisite characteristics of disfigurement. On the occasion
of a May 2003 examination, the examiner stated that the scar
was not easily visible or palpable. He described that scar
as asymptomatic and healed. The examiner further noted that
details of the scar could not be examined since it was not
easily visible. Similarly, in April 2004, a VA examiner
indicated that the scar was not visible without the veteran
tilting his head upward; the scar was described as smooth and
regular. Since the scar is not easily visible, it cannot be
said that the scar on the chin meets the size requirements
for a characteristic of disfigurement, including change in
color, under Diagnostic 7800. In April 2004, there were no
pain and no adherence to underlying tissue; the examiner
stated that there was no breakdown or ulceration. The
diagnosis was superficial scar. There is no tissue loss,
distortion, or asymmetry. The scar has none of the eight
characteristics of disfigurement.
A 10 percent rating is warranted for a superficial scar that
is unstable. 38 C.F.R. § 4.118, Diagnostic Code 7803. An
unstable scar is one where, for any reason, there is frequent
loss of covering of the skin over the scar. A superficial
scar is one not associated with the underlying soft tissue
damage. 38 C.F.R. § 4.118, Notes 1 and 2 following
Diagnostic Code 7803. A 10 percent rating is warranted for a
superficial scar that is painful. 38 C.F.R. § 4.118,
Diagnostic Code 7804. Other scars will be rated based on the
limitation of function of the affected part. 38 C.F.R.
§ 4.118, Diagnostic Code 7805.
As noted above, the VA examinations of records have found no
instability, pain, or limitation of motion resulting from the
veteran's scarring, and the other records in the claims file
reflect no such manifestations. In short, the preponderance
of the evidence is against a finding that a compensable
rating is warranted for scar on the chin area. Thus, the
benefit-of-the-doubt rule does not apply and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
ORDER
Service connection for migraine is denied.
Service connection for a jaw disability to include TMJ is
denied.
Entitlement to a compensable evaluation for left mastoid and
chin area scar is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs